Yisroel Pensack: None Dare Call It Conservadox

Practically around the corner from where I live is a big old synagogue called Congregation Chevra Thilim that describes itself as “San Francisco’s oldest Orthodox congregation.”

Chevra Thilim is currently undergoing a $1.6-million, months-long renovation, upgrade and expansion of its social hall building, which is immediately behind, contiguous with and connected to the congregation’s sanctuary building. The two structures are virtually, if not literally, under one roof. There is also a separate classroom building on the congregation’s property that is presently being used as a non-Jewish school which is located some distance behind the sanctuary-social hall structure and not contiguous with it. That school building is not part of the upgrade project.

Plans to renovate, partially redesign and upgrade both Chevra Thilim’s sanctuary and social hall were first announced during Yom Kippur services in September, 2009. The work now underway on the social hall is the first stage of that project.

Primarily for personal health reasons, I had stayed away from Chevra Thilim since last November when the partial demolition and construction work began, but I did drop in briefly on Purim night and I attended services there the Shabbat morning before last, March 17. That day happened to be the 23rd of Adar on the Jewish calendar, the day Moses and the Children of Israel first erected the Tabernacle, or portable Temple, in the wildnerness after the exodus from Egypt. The Torah reading for that morning was portions Vayakhel and Pekudei. We learn from portion Vayakhel that in general, even work on the Tabernacle was not to be done on Shabbos, despite the sanctity and importance of that structure.

I was surprised to see from the sidewalk as I approached Chevra Thilim that Shabbat morning that workers were working on the building. From inside the sanctuary, workers in hard hats could be seen and heard through “frosted” windows walking alongside the shul to and from the work area located toward the rear of the building. That night after Shabbos, I sent this email to the rabbi’s email address with “UNSUBSCRIBE” in the subject line:

Please remove me from Chevra Thilim’s email and regular mailing lists. In addition to other serious religious issues at Chevra Thilim, I saw today that, contrary to this morning’s Torah portion, you are building your shul building’s social hall, etc. on Shabbos, despite your previous announcement that the shul building’s social hall, etc. would not be being built on Shabbos because that is prohibited by Jewish law.

I do not wish to have any direct personal connection to or with any non-Orthodox shul as an institution, nor have I had any such connection for almost 30 years. I have absolutely no interest in Reform, Conservative or Conservadox “Judaism” or their “Temples” — with or without a mechitzah.

In my opinion, Chevra Thilim is 100 percent Conservadox, and so are you personally.

Jewish law prohibits Jews from building on the Sabbath. The issue in this instance is whether gentiles working for a gentile contractor can work and build on Jewish-owned property on the Sabbath, and, in particular, whether gentiles can build a synagogue’s social hall on the Sabbath.

In a 2008 article titled “Building on Shabbos,” Gil Student, a Yeshiva University-trained Orthodox rabbi and blogger has written that

A Jew is not allowed to ask a gentile to perform forbidden labor on Shabbos. If a Jew can’t do it, he can’t have a gentile do it for him. However, if the Jew pays the gentile for a project rather than by the day, then the gentile can choose whether he wants to do it on Shabbos. For example, if a dry-cleaner cleans your clothes on Shabbos, it doesn’t matter because it is his choice to do that work on Shabbos and you are only paying by the suit and not hourly or daily wages.

An exception to this is property work. Because people know who owns property, a gentile cannot do work on a Jew’s property on Shabbos even if he is being paid by the project. People will not know about the payment arrangement and might assume the worst. Because of this potential for suspicion and confusion — chashad, the law is very strict about gentiles working on Jewish property on Shabbos. This is all explained in Shulchan Arukh, Orach Chaim 242.

When the prevalent practice in a community is to pay workers by the project, then there would seemingly be no concern of chashad because everyone would assume that the workers on someone’s property are being paid by the project, which is permissible. The Mishnah Berurah (242:7) quotes the Taz who prohibits this, R. Akiva Eiger and the Peri Megadim who permit it, and concludes that you should be strict regarding a house. In other words, you may not hire gentile workers to work on your house on Shabbos.

However, R. Moshe Feinstein (Iggeros Moshe, Orach Chaim 3:35) argues strongly against the Mishnah Berurah and claims that, in theory, this should be entirely permissible. He is not even concerned with guests from out of town who might not be faimilar with the community’s practice of paying workers by the project because today it is so common throughout the country, if not the world. However, for explicit public policy reasons he does not allow this.

It’s important to note that the Gil Student article and the opinions cited in it are addressing the general issue of gentiles doing work on a Jew’s property on the Sabbath but apparently are not specifically addressing the situation at Chevra Thilim where workers are building a synagogue social hall on the Sabbath which in my non-expert, layman’s opinion, should call for even greater halachic strictness than ordinary Jewish-owned property such as a home or business. Apart from purely halachic considerations, das passt nisht (it is unseemly); it simply doesn’t jibe with the concept of Shabbos and is entirely inappropriate, in my view.

Student in his article cites exigent circumstances which elicited a lenient ruling from the halachic authority known as the Chasam Sofer on the question of hiring gentiles to work on Jewish houses in war-torn Pressburg in the mid-1800s in Europe. According to Student, “Houses had been destroyed during war and there was ample work for builders. However, when Jews would insist that the builders cease work on Shabbos, they would find another house to work on and not return to finish the Jewish house. This was causing a severe housing crisis in the Jewish community.”

That is not the situation Congregation Chevra Thilim is facing, however. Nor is Chevra Thilim grappling with the problem of “hiring of a gentile contractor who uses gentile workers to build houses on Shabbos in Israel so as not to cede land into Arab hands,” another situation which Student also writes about.

Although I am speculating, it seems to me the more likely “exigent” circumstance that Chevra Thilim and its longtime rabbi, Lubavitcher chassid Shlomo Zarchi, may now be facing, if any, is that contrary to previously reported expectations (see also here), the social hall building may not be mostly completed by next September in time for Rosh Hashanah unless work on the project is performed on the Sabbath. Work was being done there last Shabbos, too, but I saw no workers there this past Sunday afternoon — their day of rest.

When I was in Chevra Thilim on March 17, a congregant told me work was being done there for approximately the previous four Sabbaths. “It’s against Jewish law!” he said. I was wondering why two other Lubavitcher rabbis who regularly worship in Chevra Thilim on Sabbath mornings — Yosef Langer, the senior official Chabad-Lubavitch shaliach (representaive) in San Francisco, and Shimon Margolin, a Russian-speaking rabbi — had apparently not objected to the Sabbath work and put a stop to it.

Shlomo Zarchi has some other unusual halachic views and practices for a chassidic rabbi. He routinely officiates in the cemetery at funerals, even though he is a kohen and the Torah generally forbids male kohanim from coming in contact with a corpse. When I asked him about that years ago he cited “meis mitzvah” (a kohen, even the high priest, can bury a human corpse if no one else can perform the burial). When I replied that meis mitzvah was not applicable to a kohen in a city like San Francisco where many Jews, including several non-kohen Orthodox rabbis are available to bury the dead, he said, “There’s a way to do it [the funeral/burial] so you don’t become tamei (ritually impure).” My guess is he’s incorrectly applying a lesson he may have “learned” by figuratively tiptoeing through the tulips to visit the grave of the Lubavitcher Rebbe, which is set up to accommodate visits from kohanim (see footnote 9 here). I further suspect there may have been an exigent circumstance of a financial, contractual, or employment-condition nature motivating the rabbi to do funerals/burials, for most people do not have a yetzer hara (evil inclination, desire or temptation) to officiate at burials.

I’ve never heard of any other supposedly Orthodox kohen rabbi who regularly officiates at funerals and burials, although the Conservative rabbi of the Conservative congregation my family belonged to in my youth was a kohen who did cemetery funerals and burials. He ultimately died — from lung cancer, I believe — at a relatively young age, leaving a widow and children, and not long after that one of his two young adult sons was killed in a car crash.

Chevra Thilim’s regular or frequent lay prayer leader apparently does not say the three politically incorrect blessings in the morning service: “…Who has not made me a gentile; …Who has not made me a slave; …Who has not made me a woman.” Rabbi Zarchi was aware of this, but the man continued to serve frequently or regularly as congregation’s prayer leader nevertheless.

I reported last November 13 that Chevra Thilim’s president David Kimel said the money needed to fund the work on the social hall building had already been raised. Subsequently, however, I was surprised to find that the congregation was still appealing for funds for the social hall project. When I then asked Rabbi Zarchi about that apparent contradiction, he told me it was not true that all the requisite money had already been raised for this phase of the project.

A local Lubavitcher rabbi recently told me Rabbi Zarchi told him I could contact or see him if I want his explanation of why work was being done on Chevra Thilim’s building on Shabbos, but in light of Gil Student’s article and other factors there is no explanation Rabbi Zarchi could possibly give me that would alter my conclusion that Chevra Thilim is essentially a Conservadox outfit operating under the mantle of supposedly chassidic (a term which normally implies ultra-religious) rabbinic leadership. Zarchi, who was born into a Lubavitch family, is the son-in-law of Orange County, California, Chabad shaliach Rabbi David Eliezrie.